[1982] KECA 53 (KLR)
The Court found that the evidence clearly established that the appellant and respondent jointly purchased the land, with both contributing to the purchase price, and that the land was registered solely in the appellant's name due to the respondent's absence on government duty. The appellant held the land in trust...
Source-derived case information.
- Citation
- [1982] KECA 53 (KLR)
- Parties
- Appellant: Gidraph Gichingiri Gachoka; Respondent: Kariuki Gachoka
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 62 of 1981
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Judges
- CB Madan, KD Potter
- Legal Topics
- Trusts in Land, Co Ownership, Land Registration, Constructive Trust
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gidraph Gichingiri Gachoka
Appellant
Kariuki Gachoka
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant held half of the suit land in trust for the respondent.
- 2 Whether the respondent was entitled to registration of half share of the land.
- 3 Whether the transaction was subject to the Land Control Act.
Ratio Decidendi
The Court found that the evidence clearly established that the appellant and respondent jointly purchased the land, with both contributing to the purchase price, and that the land was registered solely in the appellant's name due to the respondent's absence on government duty. The appellant held the land in trust for both parties, and the trust was not subject to the Land Control Act. The appellant's refusal to transfer the respondent's half share was unjustified. The High Court's order for subdivision and registration of equal shares was upheld. The appeal was dismissed with costs to the respondent.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
- The suit land shall be subdivided into two equal portions for registration in the names of the respective parties.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Madan & Potter, JJ,A. and Hancox, Aq, J.A)
CIVIL APPEAL NO. 62 OF 1981
BETWEEN
GIDRAPH GICHINGIRI GACHOKA..................APPELLANT
AND
KARIUKI GACHOKA ...................................... RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nyeri (O'kubasu, J.) dated 20th November, 1981
in
Civil Case No. 130 of 1974)
***************************
JUDGMENT OF THE COURT
MADAN, J.A.
The appellant and the respondent are brothers. On 19th August, 1959 they jointly agreed to buy parcel of land known as Title No. Ruguru/Gachika/ 624 for Shs. 1,100/- from Nderitu Githai in equal shares. The appellant paid Shs. 585/- and the respondent Shs. 515/-. The respondent produced in court the agreement of sale made with Nderitu Githai for the sale of the land to these parties. As the respondent was then engaged in the "Shifta Campaign" in the North Eastern Province of Kenya the land was registered in the appellant's name alone but in trust for the two of them, the appellant to transfer the respondent's half share to him on demand. The appellant having refused to do so the respondent sued him in the High Court and asked for a declaration accordingly which he was granted. The appellant had been living on his portion of the land for fourteen years when he filed his suit. He had also erected a semi-permanent house and planted coffee. The learned judge rejected the appellant's evidence that he had allowed the respondent to stay on the land until the respondent could buy his own land. The court also made an order that the suit land be subdivided into two equal portions so that the parties may be registered as owners of their respective portions.
This was not a transaction which fell under the Land Control Act. The trust was created personally between the parties. The evidence led to the only reasonable conclusion that the appellant held half portion of the land in trust for the respondent, The appeal is dismissed with costs.
Dated at Nairobi this 17th day of November, 1982.
C.B. MADAN
........................
JUDGE OF APPEAL
K.D. POTTER
........................
JUDGE OF APPEAL
A.R.W. HANCOX
........................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR